Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Bangladesh (Ratification: 1972)

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 102nd Session, June 2013)

The Committee notes the information provided in the Government’s report that, considering the changing global scenario in the labour sector, it had initiated amendments to the Bangladesh Labour Act, 2006 (hereinafter, the BLA), to make it more in line with ILO Conventions. These amendments were passed by Parliament on 15 July 2013 and notified in the Bangladesh Gazette on 22 July. The Government states that the amendment process underwent thorough consultations. Seventy-six articles were amended and seven new articles introduced placing special emphasis on workers’ welfare, rights and safety, industrial safety and expansion of the industry; transparency in trade union registration and wage payment system; and promoting trade unionism and collective bargaining. In addition, a committee headed by the Secretary, Ministry of Labour and Employment has been formed to formulate supplementary rules for the amended Act, and a working group has begun to prepare a draft.

The Committee notes the detailed comments made by the International Trade Union Confederation (ITUC) on the application of the Convention in communications dated 21 August and 13 September 2013. It further notes the comments made by the International Organisation of Employers (IOE) and the Bangladesh Employers’ Federation (BEF) in a communication dated 30 August 2013. The Committee requests the Government to provide its observations on the comments of the ITUC, the IOE and the BEF with its next report.

In its previous observation, the Committee, noting the comments submitted by the ITUC in 2012 alleging the murder of a trade unionist, a union leader and two striking workers, and also violence and harassment of trade unionists in the pharmaceutical sector and Export Processing Zones (EPZs), had requested the Government to take the necessary measures without delay to carry out investigations into these serious allegations with a view to determining responsibilities and punishing those responsible, and to provide information in this respect. The Committee takes due note of the information provided by the Government that the law enforcement agencies must carry out their duties as per the law of the land and that there was no illegal threat or police harassment or arrest or detention of trade unionists and trade union leaders. If there were any victims, they were accused of misdeeds and criminal activities, including agitation, violence and crisis in the ready-made garment sector. The Committee further notes, with respect to the incident in the pharmaceutical sector that the case filed by the company against 33 workers was dismissed on 10 October 2012. The Committee requests the Government to provide detailed information in its next report on the outcome of the investigations carried out in respect of any pending allegations of violence and harassment and, recalling that a genuinely free and independent trade union movement cannot develop in a climate of violence and uncertainty, to provide full particulars of the status of the investigations in respect of the murdered trade unionist.

With respect to its request concerning the status of the court case relating to the Bangladesh Garments and Industrial Sramik Federation (BGIWF), the Committee notes the Government’s indication to the 2013 Conference Committee on the Application of Standards that the BGIWF was functioning without any obstacle pending the decision of the Labour Court in the case it filed in 2008 for the cancellation of its registration. The Committee further notes the indication in the Government’s latest report that the next hearing date for this case has been set on 5 January 2014 and no permission has yet been given by the court to cancel the federation’s registration. The Committee requests the Government to provide detailed information on developments in this regard in its next report.

Articles 2 and 3 of the Convention. The right to organize, elect officers and carry out activities freely. The Committee previously noted the allegations made by the ITUC of the refusal by the Government to register unions in several sectors, including the telecom and garment sectors. The Committee notes from the latest communication of the ITUC that, while there has been a recent surge in the registration of trade unions, and that the 45 new unions in the ready-made garment (RMG) sector can be seen as positive, the ITUC was concerned that this progress would not be seen in other sectors. The Committee further notes the statistics provided in the Government’s report according to which, as of November 2013, 7,222 trade unions have been registered in the country, 32 national federations, 162 industrial federations and 34 garment industry federations, covering a total of 204 trade unions. The Government adds that 68 trade unions were registered in the RMG sector between January and November 2013. In light of the concerns raised by the ITUC, the Committee requests the Government to continue to provide detailed information and statistics on the registration of trade unions, disaggregated by sector.

Legislative reform. In previous comments, the Committee, observing that a labour law reform process was under way, had requested the Government to amend a number of provisions in the BLA so as to bring it into full conformity with the Convention. The Committee takes due note of the amendments made in July 2013 and the Government’s indication that the amendment of any law is a continuous process. The Government adds that necessary steps may be taken to amend the BLA in future on a tripartite basis considering the socio-economic condition of the country and that ILO assistance may be required in this regard.

The Committee notes with interest the amendment to section 180 which places a limitation on the restriction for the election of trade union officers to those who are employed in establishments in the state-owned industrial sector, enabling 10 per cent of union officers to be elected from persons outside of the establishment. The Committee requests the Government to further amend the legislation so that the same possibility of electing officers from outside of the establishment applies more generally to the private sector as well.

Furthermore, while welcoming a slight amendment made to section 1(4) to extend the scope of the BLA to the educational, training and research institutions functioning for profit, the Committee notes with regret that this is not the case for not-for-profit educational, training and research institutions, hospitals, clinics and diagnostic centres, as well as farms employing under five workers. The Committee requests the Government to indicate the manner in which the freedom of association rights set out in the Convention are guaranteed to these excluded workers.

The Committee takes note of the comments of the BEF in respect of section 2(49) of the BLA and its view that it is essential for administrative systems that managers and administrative officers fall within the category of employers, not workers, for organizing purposes let there be a collapse in the chain of command affecting productivity. The Committee recalls in this regard that it has always considered that managerial or supervisory employees may be denied the right to belong to trade unions of workers provided that they have the right to establish their own associations to defend their interests and that these categories of staff are not defined so broadly as to weaken the organizations of other workers in the enterprise by depriving them of a substantial proportion of their present or potential membership.

The Committee deeply regrets that the Government did not take this opportunity to address most of its previous requests for amendments: scope of the law (sections 2(49) and (65) and 175); restrictions on organizing in civil aviation and for seafarers (sections 184(1), (2) and (4) and 185(3)); restrictions on organizing in groups of establishments (section 183(1)); restrictions on trade union membership (sections 2(65), 175, 185(2), 193 and 300)); interference in trade union activity (sections 196(2)(a) and (b), 190(e) and (g), 192, 229(c), 291 and 299); interference in trade union elections (sections 196(2)(d) and 317(d)); interference in the right to draw up their constitutions freely (section 179(1)); excessive restrictions on the right to strike (sections 211(1), (3), (4) and (8) and 227(c)), accompanied by severe penalties (sections 196(2)(e), 291 and 294–296); excessive preferential rights for collective bargaining agents (sections 202(24)(c) and (e) and 204); cancellation of trade union registration (section 202(22)) and excessive penalties (section 301).

The Committee further deeply regrets that workers are still obliged to meet the minimum membership requirement of 30 per cent of the total number of workers employed in an establishment or group of establishments for initial and continued union registration, and that unions whose membership falls below this number will be deregistered (sections 179(2) and 190(f)), while no more than three trade unions shall be registered in any establishment or group of establishments (section 179(5)). Despite the various statements over the years that this requirement has been accepted by all concerned, the Committee wishes to emphasise that such a high threshold for merely being able to form and have a union registered necessarily interferes with the right of workers to form organizations of their own choosing provided under Article 2 of the Convention.

Article 5. The right to form federations. The Committee also regrets that the Government did not take this opportunity to modify the draft amendment (section 200(1)), which the Committee commented on last year, requiring that federations gather five or more trade unions, registered in more than one administrative division and formed in establishments engaged, or carrying on, in a similar or identical industry. The Committee requests the Government once again to review this provision so as to ensure that the requirement of the minimum number of trade unions to form a federation (raised from two to five) is not excessively high and thus does not infringe the right of workers’ organizations to form federations and to amend this section so that workers may form federations of a broader occupational or inter-occupational coverage and that there is no requirement for the trade union members to belong to more than one administrative division.

Encouraged by the Government’s indication that further amendment of the BLA with ILO technical assistance could be considered, the Committee firmly requests the Government once again to take the necessary measures to review and amend the abovementioned provisions so as to bring them into conformity with the Convention. Observing also the Government’s indication that a process is under way for the drafting of supplementary implementing rules for the amended BLA, the Committee recalls that it has requested the Government to repeal or amend rule 10 of the Industrial Relations Rules (IRR) 1977, so that the authority granted to the Registrar did not interfere with trade union internal affairs and requests the Government to provide information on the progress made in this regard and to furnish a copy of the new Rules.

Right to organize in EPZs. The Committee notes the detailed information provided by the Bangladesh Export Processing Zones Authority (BEPZA) in the Government’s report on the manner in which the EPZ Workers’ Welfare Associations and Industrial Relations Act 2010 (EWWAIRA) is applied. The BEPZA refers to 283 referendums (74.28 per cent of eligible industries) for Workers’ Welfare Associations (WWA) carried out on the basis of principles of transparency and accountability. It is further indicated in the Government’s report that the BEPZA will be in a position to consider the comments made by the Committee and the need for any changes to the law in light of the experience gathered through its enforcement.

Referring to its previous observation, the Committee recalls that it has commented in detail on the areas of the EWWAIRA which needed to be addressed to bring the Act into conformity with the Convention. This included the need to amend sections 6, 7, 8, 9, 12, 16, 24, which excessively regulated the formation of WWAs or their higher-level organization in a manner contrary to the Convention, and sections 10, 20, 21, 24, 27, 28, 34, 38, 46, 80 and 81 (to lapse on 31 December 2013), which permitted the Government’s interference in the internal activities of the WWAs. The Committee notes from the discussion of the 2013 Conference Committee on the Application of Standards that the Government had expressed its intention to work with the ILO to consider the manner in which EPZ workers could be brought into the scope of the national labour law to ensure freedom of association, the right to bargaining and other issues concerning labour standards.

The Committee notes the Government’s indication that a high-level committee has been formed to examine and prepare a separate and complete labour law as an international standard for EPZ workers. This committee has formed a sub-committee headed by the Director-General of the Prime Minister’s Office and two meetings have already been held to prepare a draft EPZ labour law. The Committee hopes that the necessary measures will be taken in the very near future to guarantee the rights under the Convention to workers in export processing zones and requests the Government to provide detailed information in its next report on the progress made in this regard.

Finally, the Government refers to a number of ILO technical cooperation projects in the country with the aim of improving the trade union registration system, providing capacity building for employers and trade unions, promoting workers’ rights and labour relations in the export-oriented sector and raising the awareness of workers at factory level of fundamental principles and rights at work.

Recalling the critical importance which it gives to freedom of association as a fundamental human and enabling right, the Committee trusts that significant progress will be made in the very near future to bring the legislation and practice into conformity with the Convention on all of the abovementioned points.

[The Government is asked to reply in detail to the present comments in 2014.]